Pham v The Queen [2017] VSCA 297

Court of Appeal (Vic)|2017-10-19|Before: Mr P, Santamaria JA

The applicant said that, in concluding that 'any sentence must be substantially above sentences that have been imposed in the recent past for this offence', it is unclear whether the sentencing judge was referring to the comments in Gregory about role and quantity or to the comments about the need for sentences to increase for commercial quantity cases and the likely result of a commensurate increase in sentences for LCQ cases. The applicant contended that, either way, the judge erred in his conclusion: if the statement was directed at the former, error is demonstrated for the reasons that were argued in support of his proposed first and second grounds above; if the statement was directed at the latter, then it is an erroneous approach to sentencing because: (a) there has not been any sufficient review of sentences imposed for LCQ cases that reveals inadequate sentences for this offence; (b) any review of sentences imposed in the recent past for this offence is of limited use in determining the appropriate sentence in the present case as there are no factually comparable cases available;[62] and (c) where the Court of Appeal has found that sentences imposed for a particular offence have been inadequate, the approach required is for the Court to increase, by increments, sentences imposed for an offence where inadequate current sentencing practices have been identified.

(a) the matters argued above in relation to the applicant's role in the offending;

(c) the applicant's prospects of rehabilitation being 'at least reasonable' and the sentencing judge's remark that he would have regard to those prospects in fixing a non-parole period;[63] and

(d) the applicant losing his half-share in the residential property as a result of forfeiture.

36 Finally, the applicant suggested that the sentence is manifestly excessive in light of the sentencing judge having placed too much weight on the matter of quantity, erring in assessing the applicant's role, giving insufficient weight to mitigating features, such as lack of prior convictions, or erring in some other way.

37 During oral argument, the applicant contended, in particular, that the sentencing judge had erred: (a) in exaggerating the role played by the applicant, especially in finding that he formed part of a 'syndicate'; and (b) in assessing the gravity of the offending and the moral culpability of the applicant given that the offending had involved a covert police operative.[64]

38 In my opinion, leave to appeal should be refused.

39 The sentencing judge did not sentence the applicant by reference to any label; rather, he sentenced him by reference to the conduct in which he had engaged. The role played by the applicant in the present offending was significant. Plainly, he was acting in collaboration with unknown third parties. Telephone intercepts record that he was expecting a shipment or delivery of a very large amount of cocaine. During discussions, he himself was speaking about a delivery of 500 kilograms. He was entrusted with $100,000 in order to secure the purchase of the cocaine. The sentencing judge was right to describe the role of the applicant as being that of 'a trusted intermediary in the trafficking operation'.[65]

40 During oral argument, the applicant placed special emphasis on the fact that his conduct was associated with that of a covert police operative. It is true that the involvement of a covert police operative may affect the gravity of the offending or the moral culpability of the offender.[66] However, in the present case, the covert police operative simply facilitated an offence that was well within the contemplation of the applicant. The applicant was ready and willing to commit the offence for which he was eventually convicted. Transcripts of the applicant's conversations with the covert police operative show that the applicant was well aware that 250 kilograms of cocaine stored in six suitcases was involved. As indicated above, he believed that up to 500 kilograms would be involved. Moreover, the applicant was able to secure $100,000 in cash in order to secure the purchase on the following day. The videotape of the offending reveals that he had every opportunity to consider the gravity of the conduct in which he was involved. The applicant's involvement is to be contrasted with that of a person who commits an offence on the spur of the moment without any prior contemplation of committing such an offence.

41 The quantity of drugs proposed to be involved placed this offending at the upper range of cases of this type. It is well established that the quantity of drugs involved is a highly relevant consideration in sentencing for trafficking offences.[67] As the transcript of the telephone conferences and the videotape show, the applicant was well aware of the quantity of drugs involved. Unquestionably, the objective gravity of the offending and the moral culpability of the applicant in this case were very high.

42 The applicant contended that the sentencing judge had erred by imposing a head sentence and a non-parole period that were, in all the circumstances, manifestly excessive. The applicant pleaded not guilty; he showed no remorse. He is not entitled to the utilitarian benefit commonly associated with a timely plea of guilty. In cases such as the present, general deterrence - the need to deter other parties from engaging in similar conduct - is of particular significance. As demonstrated by the table of comparative sentences, upon which the respondent relied, a sentence of 15 years was well within range.

43 I would refuse the application for leave to appeal against sentence.

[2] The sentencing judge declared a pre-sentence detention period of 136 days and made a forensic sample order pursuant to s 464ZF of the Crimes Act 1958, a forfeiture order pursuant to s 34(1) of the Confiscation Act 1997 and a disposal order pursuant to s 78(1) of the Confiscation Act 1997.

[3] See DPP v Pham [2017] VCC 905 [3]-[4] ('Sentencing remarks'). The connection between Sunny, Johnny and the applicant is not apparent from the remarks of the sentencing judge. This may be explained by the sensitivities of the operation, which the judge described (at [3]) thus: 'Your offending emerged out of a joint Commonwealth and State multi-agency organised crime task force. Due to operational sensitivities, the full details of the wider operation were not able to be revealed in the course of the trial.'

[4] The telephone call was recorded and played to the jury during the trial.

[5] It was put to the applicant in cross-examination that the reason for his pointing out the security cameras was that he knew that a drug transaction was about to take place and that he was concerned about any evidence that may link him to such a transaction. The applicant said in response that he only pointed to the security cameras to gauge Mika's reaction.

[6] The prosecution's case was that the applicant attempted to traffick in a drug of dependence, namely cocaine.

[7] This evidence is summarised in Sentencing remarks [22]-[29].

[13] Ibid s 70 (definition of 'large commercial quantity') and Sch Eleven, Pt 3.

[15] See Haddara v The Queen [2016] VSCA 168 [45]-[55] (Redlich, Priest and Beach JJA), citing R v Pidoto & O'Dea [2006] VSCA 185; (2006) 14 VR 269 (Maxwell P, Callaway, Buchanan, Vincent and Eames JJA).

[22] Ibid 278 (Gleeson CJ, Gaudron, Kirby, Hayne and Callinan JJ).

[35] See Barbaro v The Queen; Zirilli v The Queen [2012] VSCA 288; (2012) 226 A Crim R 354 and Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; (2014) 253 CLR 58.

[36] DPP (Cth) v Karam [2013] VSC 133.

[38] See R v Falanga and Visser [2014] VSC 306 and Visser v The Queen [2015] VSCA 168.

[40] Ibid 235-6 [22] (Bell, Gageler, Keane, Nettle and Gordon JJ), citing DPP v OJA [2007] VSCA 129; (2007) 172 A Crim R 181, 196 [30]-[31] (Nettle JA, with whom Ashley and Redlich JJA agreed).

[42] Gregory (a pseudonym) v The Queen [2017] VSCA 151.

[43] Ibid [100] (Maxwell P, Redlich and Beach JJA).

[48] Mokbel v The Queen [2011] VSCA 34; (2011) 211 A Crim R 37, 47 [43].

[52] See, eg, Kapkidis v The Queen [2013] VSCA 35 [23] (Maxwell P and Redlich JA); Ibrahim v The Queen [2013] VSCA 227 [31] (Buchanan AP, Hansen and Priest JJA).

[54] Ibid 519 [36] (Hansen, Whelan and Beach JJA).

[55] Sentencing remarks [62]-[91] (citation omitted).

[58] Ibid [93]-[96] (citation omitted).

[59] [2017] VSCA 151 ('Gregory').

[61] Sentencing remarks [74]-[75] (citation omitted, emphasis added).

[62] The applicant argued that cases where the quantum involved was, for example, 10 kilograms or 20 kilograms, but the offender was described as a principal, a manager, a career drug trafficker and so forth, are at odds with the present case.

[64] He referred to Taumoefolau v The Queen [2015] VSCA 221 and DPP (Cth) v Haidari [2013] VSCA 149; (2013) 230 A Crim R 134, 142 [31]-[32].

[66] DPP (Cth) v Haidari [2013] VSCA 149; (2013) 230 A Crim R 134, 142 [31]-[33] (Harper JA, with whom Weinberg and Priest JJA agreed).

Poisons and Controlled Substances Act 1981

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